Trials & Tribulations

Tuesday, May 21, 2019

The 9th Floor
I arrive on the 9th floor around 8:19 am and I'm already tired. I haven't been sleeping well of late and the nearly 2 hours of travel time to get to court is not easy on this antique body.

About a minute later, most of Sementilli's defense team arrives. Blair Berk along with the gray-haired gentleman and the dark haired data/computer expert. Also with them this time is Sementilli's sister as well as an older woman with very short dark brown hair. Sementill's blond-haired sister is wearing a white blouse and a black sweater-jacket. Leonard Levine was absent.

Right after the Sementilli defense team arrives, Baker's counsel, Michael Simmrin arrives. As soon as Simmrin arrives, I overhear snatches of conversation between defense counsel about when to schedule the next pretrial hearing.

What looks like a Deputy DA and a young, pretty blond intern (she's wearing the standard blue badge I've come to recognize as what interns wear) arrive and greet Simmrin. This other attorney tells Simmrin he has a case in front of Judge Coen.

8:35 AM
Department 101 opens and I follow the defense team inside Judge Coen's court. There is a male clerk at the clerk's desk. Like I've seen many times before, Judge Coen is at his clerk's desk chatting with the gray-haired man. Judge Coen is wearing a white shirt with a shimmering, baby blue tie. Sementilli's sister and older friend sit in the second bench row. The defense data expert takes a seat in the well of the court. When the gray-haired man is finished chatting with Judge Coen, he sits directly to my left in the second bench row. When he first entered the court, he placed his worn satchel he always carries in the spot he likes to sit, on the aisle, second bench.

A very attractive black woman with perfect make-up, small gold earrings and long tiny braids had entered earlier. She has taken a seat in the well of the court. I'm a bit mesmerized by all those tiny perfectly braided braids.

8:37 AM
DDA's Beth Silverman and Melissa Opper arrive. DDA Silverman is wearing a blended thread black/gray pant suit with a black top. She accented it with a nice silver necklace. She hands Simmrin a document with a folder and says, "Here's your copy." Over at the clerk's desk, DDA Opperman returns back to the court, the original SDT's they previously received.

I then hear DDA Silverman tell Simmrin "We're ready." I believe she followed it with, Whenever you're ready. I believe Simmrin says something about any more discovery and DDA Silverman says something to the effect that there's always discovery. My interpretation of this exchange is, the people have handed over their discovery to the defense and they are ready for trial.

Another male Deputy DA arrives and sits in the first row.

Judge Coen is on the bench in his robes. The defendants are inside the courtroom yet. They are not on the record yet. It appears Judge Coen is waiting. Then I notice that the court reporter is not at her desk yet.

8:45 AM
The court reporter comes out quickly with her equipment and Judge Coen asks her, "Are we ready?" She replies to the court that she is. We are waiting for the bailiffs to bring the defendant's out. Mr. Simmrin works on his laptop. Judge Coen patiently waits. A second bailiff enters. He goes to the custody door, opens it and holds it open. Defendant Baker enters first. He still has short black hair. No noticeable beard but a slim mustache. He's in the usual orange jumpsuit and white long-john type undershirt beneath that.

Soon after Sementilli comes out. She is in an orange jumpsuit also this time. I don't know when the change happened since I missed the last hearing but this is the first time I've seen her in the higher-security orange jumpsuit. Sementilli's hair is long and all dark.

Judge Coen goes on the record. He indicates there are no motions before the court. Blair Berk addresses the court first. She tells the court that they are anticipating a new round of discovery and that they are still working through the last two rounds turned over by the prosecution.

Burk tells the court they would like to return on July 16 or 17 as a new pretrial and on that date, set a new trial date. The case will be set at zero of 60 on that date. Judge Coen asks Simmrin which date is agreeable, the 16th or the 17th. Simmrin takes a moment before he tells the court the 16th.

Judge Coen then addresses the people and asks them if that date is acceptable. The people agree with that date. Judge Coen then addresses defendant Baker and asks, "Is that agreeable to you?" Baker agrees. The court then asks defendant Sementilli if that date is agreeable and she affirms.

And that's it. The people inform the court that several SDT's that have been copied and returned to the court.

Monday, May 6, 2019

May 6, 2019
Eleven Years From Arrest to Opening Statements
One of the questions I often receive about the Michael Gargiulo case is, Why did this case take so long to get to trial?

Murder trials in LA County can take years to bring to trial. Defendants out on bail usually take longer to bring to trial than in-custody defendants. Multiple murder cases will take even longer. There is more evidence to present and more witnesses to interview.

However, even the Grim Sleeper case (charged with the murder of 11 victims) took less time to get from arrest to opening statements (5 years, 7 months) than the Gargiulo case (10 years, 11 months).

Cameron Brown was in custody over ten years but that was for three trials (two hung juries and a third trial ending in conviction). Gargiulo’s case is unusual in that he has been in custody almost 11 years until opening statements on May 2, 2019.

The answer to the question is complicated. It’s not a single issue. By my count, it was a series of eight separate events involving two different defense counsel, the defendant, the court and the prosecution team at different times over the past 11 years.

Arrest & Charges
In California, Michael Thomas Gargiulo was arrested on June 6, 2008. He was charged with burglary and the attempted murder of Michelle Murphy on April 28, 2008. The District Attorney’s office filed case number SA0068002 in the Airport courthouse. Deputy DA is Joseph A. Markus. Defendant was represented by private counsel. Defendant pleads not guilty.

September 4, 2009
On September 4 Gargiulo was charged with four additional counts. Gargiulo pled not guilty to the following additional counts: Burglary and the murder of Ashley Ellen on February 21, 2001. Burglary and the murder of Maria Bruno on December 1, 2008.

Gargiulo requested representation by the court. However, for the next few months the clerk’s minute notes indicate he was represented from this date forward by a different private attorney.

January 23 - February 24, 20091/23/09: Gargiulo’s lawyer made a request to the court that he be removed from the case. That request was granted and Gargiulo was appointed counsel from the Public Defender’s office. Gargiulo puts on the record that he would like to have a state appointed lawyer. 2/24/09: The Public Defender’s office and the Alternate Public Defender’s office declare conflicts in this matter and the office of the bar panel is appointed. March 27 - December 11, 2009
Charles Lindner is appointed Gargiulo’s new counsel pending resolution of fees.

5/15/09: Lindner informs the court that Department 123 has authorized his appointment of the case. 7/17/09: Deputy DA Marna F. Miller has the case now. DDA Miller will present the case at the preliminary hearing almost a year later. 9/30/09: The prosecution presents to the court that the preliminary hearing will take two to three weeks and the defense states it will take a month. Based on the time estimates, the case is transferred to Dept 100, Master Calendar Court in downtown Los Angeles for transfer to a longer cause courtroom. There are no objections from counsel.

10/2/09 Dept. 100: Master Calendar Court transfers the case to Dept. 108, Judge Michael Johnson, on the 9th floor of the Clara Shortridge-Foltz Criminal Justice Center. The 9th floor is where long cause trials or complex cases are usually handled.

11/12/09: The complaint is amended. The actual change is not reflected in the clerk’s minute notes. 12/11/09: Clerk’s minute notes indicate the death penalty is pending. Second defense counsel, Dale Rubin is present in court.

January 5, 2010
A firm date of June 21, 2010 is set for the preliminary hearing. Over the next few months, subpoenas for documents come into the court are copied and disbursed. Discovery is completed.

June 21, 2010
The preliminary hearing starts. The preliminary hearing takes eight days and is held on June 21, 22, 23, 24, 25, 28, 29, 30. On June 30, the court rules on the preliminary hearing. The people file an amended complaint to add a seventh charge. This charge is attempted escape during the Perkin’s Operation held in the El Monte Jail on June 17-18, 2008. The motion is granted. The court orders the defendant held to answer on all seven charges. Felony arraignment plea is scheduled for July 14, 2010. On that date Gargiulo is charged with seven counts. He pleads not guilty to all charges.

Note: Up to this point, things appear pretty standard in Los Angeles County Superior court for a defendant with a multiple murder charge and the death penalty pending.

November 10, 2010
The people state in open court their intention to seek the death penalty.

Delay #1
This is the first event that will extend the time it takes for the case to get to opening statements.

11/10/10: The people file their statement of aggravating factors by the next court appearance. Defense requests additional time to prepare their 995, motion to dismiss and that is granted. December 6 is set as the date for the parties to meet with Judge Sam Ohta the new judge who will preside over Dept. 108 and the case. On December 6, new dates are set for the filing of the 995 motion, people’s response and the defense reply.

Note: There are several status checks over the next few months where the defendant does not appear. These appear to be counsel declarations and records rechecks of the preliminary hearing record in a death penalty case.

7/5/11: The court certifies the preliminary hearing record is complete and accurate. 7/711: In Illinois, the Cook County State’s Attorney General charges Gargiulo with the 1993 first degree murder of Tricia Pacaccio.

Note: Once California is finished with Gargiulo, Illinois will take custody of Gargiulo.

August 16, 2011 - December 7, 2011
A few pretrial hearings where the case is continued. It appears Deputy DA Eric Harmon replaces Deputy DA Miller. The defense lodges their 995 motion with the court on December 7. The motion is 132 pages long.

January 2012 - May 14, 20122/15/12: Deputy DA Daniel Akemon appears for the people, replacing Deputy DA Walgren. DDA Akemon will be the lead prosecutor who eventually tries the case.3/6/12: Order to LA County Sheriff to provide a booth for a psychiatrist Samuel I. Miles, M.D., in the attorney room to interview, examine and psychologically test defendant Michael Gargiulo is signed by the court.

Note: It is unknown if there is a specific event that triggers the need for a psychological evaluation.

4/25/12: Defendant’s oral Marsden motion and possible Pro Per motion are continued to 5/14. 5/14/12: Defendant is present and not represented by counsel. Defendant appears Pro Per. Out of the presence of the people, the defendant’s Marsden motion is argued and denied. In the presence of the people, the defendant’s motion to proceed in Pro Per is granted. Charles Lindner is ordered relieved.

Discovery is to be reacted prior to being turned over to the defendant. Faretta advisement waiver is signed and filed. Order to Sheriff for Pro Per funds in the amount of $60 including legal supplies is filed and faxed to the Sheriff’s Dept. This basically resets the case as if a new defense counsel was appointed.

Delay #2
The defendant going Pro Per in a death penalty case is the second event that delays the case significantly. The defendant retains his pro per status for approximately 30 months and only files a single motion of any significance during that time.

Note: From the time the defense filed their 995 motion on December 7, 2011, until May 2012, I can only assume there was a total breakdown of communication and/or cooperation between the defendant and his counsel. Defendant’s motion for new counsel (Marsden) was denied. Defendant went forward with a move to self-represent, Pro Per.

May 15, 2012 - July 12, 20125/23/12: Defendant has not received his Pro Per funds and has not been to the LASD jail law library to prepare a motion for appointment of an investigator.

Note: Over the next few weeks, several hearings occur for the defendant to get Pro Per funds and for an investigator to be assigned. By July 12, Lindner is appointed stand-by counsel and the defendant has his first investigator, Christian Filipiak.

August 21, 2012
I attend my first pretrial hearing in the Gargiulo case. Gargiulo files his first motions. Motion for an order to receive and have boxes for voluminous discovery. Motion for an order to have one hand free and uncuffed in private booth in attorney room. Motion to receive law library privileges. The court finds these motions are sheriff security policy issues and are continued to September 5. Defendant’s motion to receive all color copies of crime scene photos is filed and continued to September 5. The court allows defendant’s investigator to give defendant a pair of prescription glasses and two current law books.

Any discovery turned over to the defendant is to be copied on yellow paper.

Note: All of Gargiulo’s requests for funds are handled by a completely different judge/courtroom, usually Dept. 123 but occasionally Dept. 110.

September 5, 2012 - May 9, 20149/5/12: The prosecution files a motion to prevent the defendant from possessing in his cell, the crime scene photographs. After a review of relevant case law, the court rules on September 26 that copies of the crime scene photographs and videos will remain in the custody of defendant’s investigator and not in the defendant’s jail cell. The court orders a representative of the sheriff’s department to appear at the next pretrial hearing to address defendant’s motions that are in conflict with security policy at the jail. 10/29/12: The people turn over discovery material to the defendant.

Note: All future discovery that the people turn over to the defendant is documented in the court record.

11/28/12: Defendant’s motion to have one hand free and uncuffed in attorney room at MCJ (LASD Men’s Central Jail) is granted. Defendant’s motion for boxes is withdrawn.

2/25/13: People submit a protective order for discovery filed under seal. Defendant’s motion for order of transcripts is argued and denied. Defendant’s motion for a medical order is signed and faxed.

6/14/13: Defendant’s motion for order for court transcripts is filed. Standing court order for transcripts is in effect. Defendant’s opposition to the people’s stipulation to the Maria Rodriguez murder is filed this date and requires no action. Prosecution’s informal request for discovery (second request) is filed. Charles Lindner is in court and informs the court he has not received any demand for discovery from the defendant. Prosecution will provide standby counsel with discovery.

6/28/13: DDA Garrett Dameron appears on behalf of the people. Defendant’s ex parte motion for order for DA’s office to handover information re the murder of Maria Rodriguez (the Downy case) to Judge Sam Ohta for in camera review is filed. 7/19/13: Stipulation is signed by all parties on the Maria Rodriquez murder. The prosecution is on their tenth set of discovery materials turned over to the defendant. 11/22/13: Twelfth set of discovery materials turned over to the defendant. Investigator Chris Nicely is present in court.

Note: This is the first mention of Mr. Nicely in the clerk’s minute notes but I believe he has been working on the case for some time.

1/31/14: The people’s motion to compel compliance with PC 1054 ET SEQ discovery procedures and quash subpoena duces tecum (SDT) investigating agency is placed off calendar. The defendant withdrawals his subpoena duces tecum. People’s subpoenaed records are opened in court and released to the people for copying and returned to the court. Two boxes of sealed medical records are lodged with the court.

2/21/14: The people’s 1054 motion and request to quash defense SDT’s mentioned on 1/31 is filed with the court. The fourteenth set of discovery materials is provided by the people to the defendant. Parties confer regarding ongoing discovery. 3/7/14: Parties confer regarding ongoing discovery. The people’s motion to compel discovery and quash subpoenas is continued to next court date. 3/14/14: People’s motion is continued to next court date. Defendant is instructed to file under seal, a document indicating how subpoenaed documents relate to his defense. 4/18/14: Matter continued to 5/9. The people turn over more discovery materials to the defense.

5/8/14: Defendant is not present. An in camera hearing is held in chambers. Court reporter’s notes are sealed. 5/9/14: The court is in receipt of the notice of results of [an] administrative hearing to deny defendant’s in custody [at LASD] pro per privileges for cause filed May 1, 2014. A hearing was conducted at Men’s Central Jail by the Sheriff’s Department on April 25, 2014. The hearing officer terminated defendant’s in-custody pro per privileges. A hearing date is set on May 16, 2014, for the court to review the Sheriff’s Department decision. LA County counsel is notified to appear on behalf of the LASD on May 16. An in camera review was held in chambers on May 8. Discovery is ordered turned over to defendant’s investigator to copy and return to this court upon completion.

Delay #3
The event mentioned in the court file on 5/8 and 5/9 is is the third event that delays the case. When Gargiulo was returning to the jail after his court hearing on April 18, 2014, he was caught with contraband, a piece of metal hidden inside his mouth. This was a violation of LASD jail policy. The LASD revoked Gargiulo’s in custody pro per privileges and access to the law library. Even with this setback, defendant does not wish to relinquish his pro per status. He hangs onto it for six more months.

May 16, 2014 - November 7, 2014 5/16/14: The court conducts a review of the LASD administrative hearing [Wilson hearing] to deny defendant’s in custody pro per privileges. The cause is argued. The court finds substantial evidence to support the sheriff’s action to deny defendant’s access to the law library and pro per phone privilege. Defendant requests a transcript of today’s hearing. Defendant does not wish to relinquish his pro per status and will remain in pro per. 5/30/14: Defendant not present. Court rules on defendant exparte motion to receive local daily news paper and daily journal. The expasrte request is denied without prejudice.

6/27/14: Discovery material provided by the people to defendant. This is the seventeenth set of discovery documents from the people. People state that discovery to the defense is complete. People’s response to defendant’s informal discovery filed. 7/11/14: Matter delayed and case called in Dept. 107 as defendant needs a wheelchair to appear in court. Judge Lomeli signs a medical order for defendant to have his back and ankle checked.

9/25/14: Defendant’s motion for continuance is filed. Defendant’s oral motion to reinstate privileges is a matter for the sheriff’s department to address to the court. (There is no motion to reinstate privileges in the legal court file and the defendant cannot produce a conformed copy on this date.) Medical order is signed 10/10/14: Defendant’s opposition to people’s motion in liming re: statements obtained during Perkins operation at El Monte Jail is filed. People will re-submit a copy of people’s motion in limine. The parties confer regarding the letter dated 9/29/14 from the LASD re defendant’s pro per privileges.

Note: This is the only significant motion that Gargiulo filed during his entire 30 month run representing himself in a death penalty case. The motion was not hand written like many of his other motions but typed. Someone other than Gargiulo prepared this motion.

11/07/14: Defendant’s motion to relinquish his pro per status is granted. Standby counsel Charles Lindner is appointed as defense counsel. Court orders LASD that defendant is allowed to keep his papers related to his case in his cell until further order of the court set for 1/9/2015. All papers in storage are to be preserved until further review on 1/9.
January 9, 2015 - July 23, 2015 1/9/15: Court and counsel confer regarding discovery. Defense counsel to meet with Detective Lillienfeld regarding discovery material in the possession of the defendant. 1/16/15: In camera hearing with defense counsel. Defendant is not present in court. Court reporter’s notes are ordered sealed. Defense document submitted to the court is ordered sealed and placed in a sealed-records envelope as confidential. Envelope not to be opened except on order of the court. 5/7/15: Defendant’s motion to dismiss pursuant to PC section 995 is filed. Defendant’s oral Marsden motion is continued.

Delay #4
Gargiulo trying to get his counsel replaced again with another Marsden motion is the next event that delays the case while the issue is resolved. I have no solid evidence to base my opinion on, but it appears to me Gargiulo and his court appointed attorney cannot stand each other and Gargiulo is doing everything he can to get a new attorney assigned.

6/12/15: On this date, the court denies Gargiulo’s oral Marsden motion. Gargiulo orally informs the court that he wishes to withdraw his general time waiver. The court, sensing Gargiulo is trying to punish or retaliate against his counsel, also orders defense counsel to speak to his client privately in the lock-up area. Lindner’s paralegal, his son Abe Lindner, and defense investigator Chris Nicely join Lindner in lock-up for this meeting. Afterwards, defense counsel informs the court that his client refused to speak to him in lock-up. The defendant’s oral motion to withdraw his general time waiver is continued to 6/15.

6/15/15: Defendant’s oral request to withdraw general time waiver is granted. Counsel’s response to defendant’s request for speedy trial is filed. The last day until the trial must commence is 8/14/15.6/30: Ongoing discovery is discussed. 7/14/15: Defense counsel informs the court that attorney Dale Rubin has been reappointed as co-counsel. Court orders attorney Dale Rubin to be present on next court date. 7/23/15: Dale Rubin is present. Ongoing discovery is discussed. Defendant through his attorney requests to read a statement in open court without his attorney’s approval. Upon speaking to his attorney, the request is withdrawn. Case continued to 9/9.

August 27, 2015 - September 9, 20158/27/15 Department 123: On August 3, 2015, Charles Lindner counsel for the defendant submitted to this court a six-page letter detailing the circumstances of the inappropriate withdrawal of approximately $10,000 from the attorney-client trust fund in this matter by a third party.

9/4/15 Department 100: On the direct order of Judge James Brandlin, [Presiding Judge of the LA Co. Superior Court] a Marsden motion is assigned to Judge Scott Gordon on 9/9 in Dept. 123.

9/9/15 Department 123: Cause is called for OSC and Marsden motion. Defense counsel Lindner and Rubin are present. Order to show cause is granted. Mr. Lindner is ordered to cooperate with the superior court’s finance department. Marsden motion is heard. Motion is granted. Lindner is relieved as counsel of record. Good cause exists for relieving Mr. Lindner as counsel independent of the findings in the Marsden motion. No conflicts exist between Mr. Rubin and the defendant. Rubin is conditionally appointed. Lindner is ordered to self-report himself to the State Bar of California and provide proof of reporting to this court within 30 days.

Gargiulo’s desire for a different counsel comes true, but not based on anything he did. Dale Rubin is advanced as the attorney of record. Rubin has to present a budget to defend the case to Dept 123 and get it approved. He also has to find a co-counsel for second chair. Rubin will need to review all of the people’s discovery to date. These next steps will take time and delay he case.

Note: The full details of the theft from Lindner's client trust account and who was responsible will not be revealed until early in 2019 when defense counsel Dale Rubin files his non-standard 995 motion to dismiss the case (and reply motion) and the 995 motion is argued in open court.

November 5, 2015 - December 16, 2016
Dale Rubin has several appearances in Dept. 108 and in Dept. 123 to get a budget approved and find co-counsel.

7/14/16: Defense co-counsel of record is Daniel Nardoni. 11/21: Sometime before November 21, Judge Ohta is moved from Dept. 108 to Dept. 123. A new judge is assigned to Dept. 108. The people file an affidavit of prejudice against the new judge in Dept. 108, the Honorable Judge Lisa B. Lench. The matter is set in Dept. 100 for assignment on 11/28. 11/28/16 Department 100: Counsel for the people and defendant are all present. Court transfers the case to Department 106, Judge Larry P. Fidler and orders parties to Dept. 106 on December 16, 2016.12/16/16: Case is continued to March 17, 2017.

Delay #6
The people's request for a new judge delays the case. The Gargiulo case is moved from Dept. 108 to Dept. 106, Honorable Judge Larry P. Fidler. Judge Fidler’s case load is already extensive and Gargiulo’s case is low on the totem pole in this new court. Judge Fidler’s calendar is backed up for months. This transfer delays the case for more than a year.

March 17, 2017 - January 12, 2018 3/17/17: The case is continued until June.9/8: Due to Judge Fidler having potentially back-to-back death penalty cases, the Gargiulo matter is scheduled for trial on January 12, 2018. 1/12/18: Gargiulo amends his plea to add not guilty by reason of insanity.

Delay #7
Gargiulo’s additional not guilty by reason of insanity plea delays the case for another year. Trial is expected to start in January 2019.

Note: This means there will now be three separate trials to the Gargiulo case. First will be a trial to determine if Gargiulo is guilty or not. If Gargiulo is found guilty, then a trial will be held to determine if Gargiulo was sane at the time he committed the murders and attempted murder. If Gargiulo is found sane, then there will be a third trial to determine punishment of life without parole or death penalty. The prosecution is now entitled to see the medical file and psychiatrist notes on every visit Gargiulo had with his doctor. The people are also allowed to have Gargiulo examined by their own mental health expert. All this will take time.

May 19, 2019 at 3:00 pm (Pacific)DIESEL, A Bookstore, 225 26th Street, Santa Monica, CA 90402
DIESEL, A Bookstore in Brentwood welcomes Matthew McGough to the store to discuss and sign The Lazarus Files: A Cold Case Investigation on Sunday, May 19th at 3:00 pm. Please note that this event will take place in the lower outdoor courtyard adjacent to our store.

BOOK LAUNCH
I was sorry to miss the book launch on April 30 at The Last Bookstore in downtown Los Angeles. Matthew's wife, the extraordinary Kathryn Busby was kind enough to pass on photos from the event.

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